BILL ANALYSIS Ó
AB 1235
Page 1
ASSEMBLY THIRD READING
AB 1235 (Roger Hernández)
As Amended May 5, 2011
Majority vote
JUDICIARY 9-0 HOUSING 5-0
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Atkins, Buchanan, |
| |Dickinson, Huber, | |Bradford, Hueso, Jeffries |
| |Huffman, Jones, Monning, | | |
| |Wieckowski | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides qualified immunities from liability, if
certain conditions are met, for brownfield cleanup activities
conducted by "successor agencies" assuming the authority and
duties of redevelopment agencies, if redevelopment agencies are
dissolved by Legislative act. Specifically, this bill :
1)Provides that if a redevelopment agency (RDA) has been
dissolved by an act of the Legislature and its successor
agency, as defined, maintains all the rights, powers, and
duties that were vested in the redevelopment agency prior to
its dissolution, then certain immunities that previously
applied to the RDA shall apply to the successor agency for the
removal of hazardous substance releases, as specified, from
property that was within a redevelopment project of the RDA
prior to its dissolution.
2)Defines "successor agency" as the county, city, or city and
county that authorized the creation of the RDA.
EXISTING LAW :
1)Authorizes a RDA to take any actions that it determines are
necessary and that are consistent with other state and federal
laws to remedy or remove a release of hazardous substances on,
under, or from property within a project area, whether the
agency owns that property or not, subject to certain specified
conditions.
2)Provides qualified immunities from liability to a RDA or its
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agent that undertakes and completes an action to remedy or
remove a release of certain hazardous substances from property
within a redevelopment project, for that release only and as
long as the actions are in accordance with a cleanup or
remedial action plan prepared by a qualified independent
contractor and approved by the appropriate state or local
authorities.
3)Limits the immunity to the release or releases specifically
identified in the approved cleanup or remedial action plan,
and not for any subsequent releases not specifically
identified.
4)Authorizes extension of immunities only to specified persons,
including but not limited to employees or agents of the RDA,
and any person who entered into an agreement with the RDA for
redevelopment of the property if the agreement requires the
person to remove or remedy a hazardous substance release with
respect to that property.
5)Prohibits extension of immunities to specified persons,
including but not limited to any person who was a responsible
party for the release, and any contractor who prepares the
cleanup or remedial action plan or who conducts the removal or
remedial action itself.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the Center for Creative Land
Recycling, represents the forward-thinking judgment of the
author that the Legislature ought not to wait until RDAs are
officially dissolved before it starts to develop policy for a
post-RDA landscape in California. Although the fate of RDAs is
not known at this time, this bill seeks to address the limited
issue of immunities for cleanup of brownfield properties in
redevelopment, in the contingency that RDAs are dissolved by
Legislative action and cease to exist. This bill seeks to
extend to a city or county ("successor agency") that succeeds to
the role previously held by the former redevelopment agency the
same qualified immunities from liability that were available to
the RDA prior to its dissolution, with respect to removal of
hazardous substances from a brownfield redevelopment project.
According to the author, the bill is needed at this time in
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order to preserve existing legal protections to entities wishing
to redevelop brownfield properties without interruption in case
RDAs are dissolved. The author states that this bill is
intended to serve as a legislative vehicle "that explicitly
addresses legal immunities so as to not risk having
redevelopment come to a standstill if the Legislature approves
an elimination of RDAs." The author contends that "absent this
bill, if that scenario were to play out, several months would
pass before we could pass and approve a bill to address this."
Since 1945, state law has given local city and county government
the authority to form a RDA with the specific purpose of
revitalizing deteriorated or blighted areas of the community.
According to the California Redevelopment Association, there are
nearly 400 active RDAs throughout the state, all of which are
overseen either by a local city council, county board of
supervisors, or a separate appointed board, and thus are
publicly accountable. With respect to contaminated properties
(also known as brownfields), RDAs are often in a good position
to take an active role in the cleanup and redevelopment of these
sites to attract private investment.
AB 3193 (Polanco), Chapter 1113, Statutes 1990, (Polanco Act)
which grants RDAs with qualified immunity from liability under
the state Superfund and other environment liability cleanup laws
for hazardous substance cleanup actions conducted pursuant to an
approved remedial plan. Research of the legislative history of
the Act shows that its purpose was to "encourage the cleanup and
redevelopment of sites contaminated by hazardous materials . . .
by providing a qualified immunity from liability for future
cleanup costs." (Senate Judiciary Committee analysis, August 7,
1990.) Proponents of AB 3193 (Polanco) contended at the time
that RDAs and developers were prepared to expend financial
resources to clean up these sites, but were reluctant to do so
because of the liability exposure under then-existing law for a
less than perfect cleanup operation. (Id.) This is essentially
the same argument that proponents of this bill now make-that
cleanup of brownfield sites will "come to a standstill" unless
immunities from liability are extended to the actors who would
otherwise invest the resources needed to do the cleanup.
Importantly, the Legislature approved AB 3193 (Polanco) only
after establishing a number of specific parameters for the
qualified immunity provided under the bill, all of which
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continue to exist within Health and Safety Code Section 33459.3.
These parameters include: 1) the RDA must follow and properly
complete a remedial action plan approved by a specified state
agency for the immunity to apply; 2) the plan must be prepared
by an independent contractor, not by any employee of the agency
that would benefit from the immunity; 3) the immunity applies
only to releases identified in the plan, and not to any
subsequent or unidentified release of a hazardous substance; 4)
the immunity is available only to the RDA, its employees and
agents, and other specified persons who have entered into
agreements with the RDA; and, 5) immunity is not available to
certain persons, particularly any person responsible for the
hazardous substance release.
Because those immunities are highly qualified and premised on
the role, authority and duties fulfilled by a publicly
accountable redevelopment agency, this bill appropriately seeks
to extend to city and county successor agencies only the same
set of qualified legal immunities for cleanup of brownfield
redevelopment properties that now apply to RDAs under existing
provisions of the Polanco Act. Furthermore, the bill would
extend these immunities only if the redevelopment agency has
been dissolved by an act of the Legislature, and would have no
effect if this contingency did not occur.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0000613